Al-Ahram Weekly – 5 February 2004
Israel’s furious diplomatic activity to sabotage a decision taken by the United Nations General Assembly last December to seek the opinion of its highest judicial body, the International Court of Justice, on the legality of Israel building its separation wall across large swaths of occupied Palestinian territory began to pay dividends at the weekend.
By the Friday deadline for submitting affidavits, 31 states had joined Israel in rejecting the court’s authority to rule in the matter: 15 member states of the European Union, 10 further members-in-waiting, as well as the United States, Canada, Australia, Russia, South Africa and Cameroon. Britain, Germany and France presented their own, separately written affidavits.
Lined up against them are the Arab League, as well as Egypt, Palestine, Jordan and Saudi Arabia, which are due to present evidence to the court, based in the Hague, on the wall’s illegality and its catastrophic effects on the livelihoods of Palestinians.
The Palestinian leadership was infuriated by what it saw as European treachery. Cabinet Minister Saeb Erekat said: “The United States, Britain and Germany ask the Palestinians not to have recourse to violence, but when the Palestinians have recourse to diplomacy they slam the door on us.”
The resolution passed a General Assembly vote on 8 December, after European states abstained — and following earlier European attempts to persuade the Palestinian observer, Nasser Al-Qidwa, to withdraw his motion.
The resolution calls on the court to issue an advisory opinion on “the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem.”
It was prompted by a report from the UN secretary-general, Kofi Annan, in November which concluded that Israel’s wall was a violation of international law and “could damage the longer-term prospects for peace”.
The hearing at The Hague court, before a panel of 15 judges, is due to begin on 23 February.
The change of mind in European capitals, which have universally denounced the choice of the wall’s route through Palestinian territory by Israeli Prime Minister Ariel Sharon, was largely explained by Israeli and US lobbying.
Europe, much battered over its negative image in the US as both anti-Semitic and, following the invasion of Iraq, anti-American, was reluctant to risk a major confrontation with the US in the arena of the United Nations — itself under siege from Washington for its failure to support the “war on terror”.
Israel and the US also played on Western states’ fears that by agreeing to refer the matter of the wall to an international tribunal over Israeli objections they were effectively setting a dangerous legal precedent, one that might be turned against them at a later date.
This was the best way to decipher comments from the British junior foreign minister, Lady Symons, to the Jewish Chronicle that the hearing would “serve to politicise the court in a way for which it was not designed”.
Her view echoed that of Israeli Foreign Minister Silvan Shalom, who said on Saturday that the hearing on the wall should be cancelled “because it is a political, not judicial issue”.
A Foreign Office spokesman gave clearer expression to British sentiments when he told the Jerusalem Post newspaper that the court was only supposed to arbitrate in disputes in which both parties willingly sought its help, and not hear cases in which one side opposed the hearing.
This was nonsense. The court has two kinds of jurisdiction: the first is to settle disputes in cases submitted by states; the second is to offer a non-binding, advisory opinion if requested to do so by a major organ of the United Nations. The resolution on the wall clearly falls into the latter category.
The legal team that prepared Israel’s affidavit, led by British jurist Daniel Bethlehem, has warned the government that Israel’s actions are almost certain to be judged a violation of international law if the court issues an opinion.
Israel is believed to have argued in its affidavit that the wall is a non- violent, temporary measure designed to protect human lives.
Justice Minister Tommy Lapid and his officials have been considering whether a verdict against Israel might not only damage Israel’s international reputation but also expose it to a South African apartheid-style boycott. A similar advisory opinion from the International Court in 1971 denouncing South Africa’s occupation of Namibia led to international sanctions against the apartheid regime.
The court has the discretion to refuse to offer an opinion. Although it has used this discretion only once before, in 1923, Israel hopes that by winning blanket support from Western states the court will feel too vulnerable to accept the referral.
This week sources at the UN were reported to be suggesting that the court would rule the question of the wall inadmissible.
The Israeli government’s campaign to isolate the court began last week with the issuing of graphic pictures of the charred remains of a bus in Jerusalem in which 11 people died and more than 50 were injured after a Palestinian suicide bomber detonated an explosives belt.
Israeli spokesmen reiterated that the wall was needed to prevent such attacks against civilians inside Israel. Late last year the government officially renamed the wall the “counter-terrorism barrier”.
The problem for Israel is that although the terrorism message plays on Western emotions it is far from a convincing legal defence. The UN General Assembly resolution specifically requests an opinion on the legality of building the wall on occupied territory, not its legality if built inside Israel or on the Green Line, the pre-1967 border between Israel and the West Bank.
There is also the question of whether the wall will be effective. The Shin Bet security services have been expressing doubts for some time. Last week the head of the service, Avi Dichter, warned that although attacks would become rarer after the wall’s completion those Palestinians who got through would make sure their actions were more deadly.
Washington has tried a different tack to sink the court hearing. State Department Spokesman Richard Boucher claimed at the weekend that the resolution jeopardised existing efforts to achieve progress on negotiations between the Israelis and the Palestinians — a presumed reference to the US-promoted roadmap. However, that particular diplomatic initiative effectively bit the dust months ago.
With a powerful lobby behind it, Israel is now likely to try to question the impartiality of the court. Sharon’s office has discussed the possibility of suggesting an Israeli judge be appointed to the panel. It has already objected to an Egyptian judge, Nabeel El-Araby, sitting in judgement of the wall.
Paradoxically, the Israeli government appears more concerned about a hearing on the legality of the wall’s route due before its own High Court on 15 February than the resolution submitted to the International Court. Sharon has been warned by his attorney-general that the course of the wall may be hard to defend before Israeli judges.
Palestinian petitions before the High Court deal with the expropriation of lands, the deterioration in living conditions of Palestinian farmers who have been cut off from their fields, and the restricted operation of gates in the wall that are supposed to ensure some freedom of movement.
Recent reports confirm the appalling toll the wall’s construction is already taking on Palestinian lives — even though only part of the total 600 kilometres of the western wall have been completed and the threatened eastern wall, through the Jordan Valley, has not yet been begun.
According to research by the Israeli human rights group Btselem, at least 875,000 Palestinians — nearly 40 per cent of the population of the West Bank and East Jerusalem — will be directly affected by the finished wall.
Some 263,000 Palestinians will be caged between the wall and the Green Line, and redesignated as “long-term residents” of Israel without citizenship rights. Another 402,000 will be east of the fence but cut off from lands or services they need on the western side of the wall. Finally, 210,000 East Jerusalemites will find themselves isolated from the rest of the West Bank.
A survey of nearly 900 Palestinian households by the Palestinian Central Bureau of Statistics revealed the early consequences of such changes on the ground. Some 15 per cent of parents reported that one of their children was having difficulties getting to school, and half that number said a child had been forced to change school.
The numbers of families who were coping on their current incomes fell from nearly 63 per cent before the wall’s construction to slightly less than 18 per cent now. Some 52.7 per cent said their income was now insufficient to meet their needs.
Furthermore, 52 per cent of families living west of the wall said they had been separated from relatives, and more than 90 per cent said they had difficulties visiting other family members. Some 37 per cent of those living east of the wall reported being cut off from relatives.
Less harsh but none the less damaging conclusions are expected to be included in the US state department’s annual human rights report, due for publication on 25 February, two days after the scheduled start of the International Court’s hearings. A significant section of the chapter on Israel and the occupied territories is said to concern the wall.
Despite promises to Israeli officials from the state department that the final report will be “balanced”, Israel is pressing for the report’s publication to be delayed until after the court in The Hague has completed its work.